Heiss v. Cronan

Spoefobd, J. The plaintiff sues to be recognized as co-proprietor with the defendant to the extent of an undivided half interest in a tract of land purchased, in the name of the defendant, at a syndic’s sale. The petition alleges that the original purchase was made in the name of Oronan, for the joint interest of Oronan and the plaintiff, hut that the former fraudulently witholds the property and claims the whole. Parol evidence was offered to prove the verbal acknowledgments of Oronan, that the facts are as alleged. The testimony was properly rejected. O. O. 2255, 2256, 2415. The allegation of fraudulently denying the original bargain, does not take the case out of the rule, for a verbal agreement of this sort, touching immovable property, is only capable of being enforced at law when the party to be charged confesses it on oath and actual delivery has been made. Every refusal to carry out an oral agreement for the conveyance of land, might in one sense be charged to be fraudulent, and thus the rule would be made nugatory. But the plaintiff further relies upon an unsigned draft of a power of attorney in the handwriting of Oronan, empowering the latter, as agent of the plaintiff, to represent him in any suit at law which might be brought against any interest he might have in the tract of land bought by Oronan at the syndic’s sale. This iocument was never executed by the plaintiff, nor accepted by the defendant. At the time it was written, there may have been negotiations between the parties as to an interest which wore never consummated. It is not an admission in writing by the defendant, that the plaintiff was owner of an undivided moiety of the land the title to which was adjudicated to Oronan alone; nor can this unfinished and indefinite instrument be eked out by parol. Finally, the plaintiff relies upon the fact, that in a former suit prosecuted in the name of Oronan alone, (Reiss being in no manner a party,) against the syndic and the succession of John MeDonogh, to clear the title to the land in question from a pretended claim of the MeDonogh estate, the counsel of Oronan offered as a part of his evidence, a projet of an act of sale of the land in dispute purporting to be from the syndic, “ to Denis Oronan and John P. Reiss, the said John P. Reiss b.eing herein represented by the said Denis Oronan.” The act was not dated nor signed by a notary, or any one else. If this projet had been offered in a suit to which Reiss was a party, or in which there was any issue as to their respective interests in the land, it would have constituted an admission sufficient to estop the defendant Oronan from denying that Reiss was jointly interested in the land with himself. The authority cited by the appellant from 5 An. 22, Denton v. Irwin, would then have been applicable. [214] there is no judicial admission in the former suit, that Heiss was equally interested in the purchase, Gronan claimed the whole tract, conducting the suit in his own name. The adjudication was to Gronan alone, and the adjudication was the tille; after the adjudication and before the formal act of sale was passed, there might have been a negotiation between Gronan and Heiss to give the latter an interest in the purchase, and & projet of an act might have been drawn up with that view, which was afterwards abandoned. The projet although offered in evidence by Gronan, under these circumstances, does not prove the land was sold at the syndic’s sale to Gronan & Heiss, and cannot prove that they ever were co-proprietors thereof, unless it is supplied by parol proof, which, as we have already stated, is inadmissible. It is proper to remark that there seems to have been some mistake also in offering this projet; for the notes of evidence in the former suit, also relied upon by the plaintiff in the suit, speak only of a projet of sale to D. Gronan, not to Gronan and Heiss, and it appears in this case that such a projet was drawn. The true agreement of the parties can only be arrived at by consulting parol evidence, which we are not permitted to do. Judgment affirmed.